New Paper: Why Section 230 Is Better Than The First Amendment

from the they're-related dept

We've talked a lot over the years about the importance of Section 230 of the Communications Decency Act (CDA) in helping to create and enable the internet and all of the free speech on the internet. Expect us to continue to talk about it as it is increasingly under attack. Professor Eric Goldman has now released a short, and very worth reading, paper about Section 230, with the provocative title: Why Section 230 Is Better Than the First Amendment. The importance here is that many have argued that CDA 230 and the 1st Amendment go hand in hand. At times, in the past, I've argued that in a reasonable world we shouldn't even need a CDA 230, because the proper application of liability should obviously be with the person posting the law-breaking content, rather than the platform hosting it. But, that was clearly talking about in an idealistic world that does not exist. Given the frequency of lots of people -- plaintiffs, journalists, politicians, and more -- going after platforms for actions of their users, CDA 230's broad immunity is absolutely necessary if we're to have free speech online. Goldman's paper makes this clear:

If the First Amendment mirrors Section 230’s speech protections, narrowing Section 230 would be inconsequential. This Essay explains why that’s not the case. Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does. Because the First Amendment does not backfill these benefits, reductions to Section 230’s scope pose serious risks to Internet speech.

Goldman's paper lays out the argument very clearly (it's very readable for an academic paper). He notes that Congress has passed many laws that are "speech enhancing" beyond the 1st Amendment, which are often designed to make sure that the 1st Amendment is actually useful, rather than illusory. For example, he discusses things like shield laws for journalists, anti-SLAPP laws, and the recent Consumer Review Fairness Act, that bars companies from banning consumer reviews. As Goldman notes, there are reasons to go beyond the 1st Amendment to better protect speech:

The justification for speech-enhancing statutes is clear when the laws extend the First Amendment. For example, anti-SLAPP laws and defamation retraction-demand statutes create procedural hurdles to speech-related lawsuits that the First Amendment does not require. The CRFA governs private vendor-customer contracts, which typically do not receive First Amendment scrutiny at all.

The key point that Goldman makes is that most of these laws provide procedural benefits. That is, what good are your free speech rights, if someone can abuse legal processes to silence you. The important elements of things like anti-SLAPP laws and CDA 230 are in how they stop bogus lawsuits early and at a lower cost point than the 1st Amendment alone.

Section 230(c)(1)’s early dismissals are valuable to defendants. They reduce the defendant’s out-of-pocket costs to defeat an unmeritorious claim. For smaller Internet services, defending a single protracted lawsuit may be financially ruinous. Also, complex litigation can divert substantial managerial and organizational attention and mindshare from maintaining or enhancing the service. Thus, the ability of a defendant to resolve a case on a motion to dismiss (and avoiding expensive discovery) protects small and low-revenue Internet services; which in turn enhances the richness and diversity of the Internet ecosystem.

But, of course, it's not just about defeating bogus lawsuits. There are wider benefits to this procedural expeditiousness, including much better protection of free speech online than would happen otherwise:

Section 230(c)(1)’s early dismissals also benefit society in several ways. First, from a judicial economy standpoint, they save both parties from wasting valuable resources on doomed litigation. They also take meritless litigation off court dockets, freeing up the courts to handle other cases more carefully or quickly.

Second, Internet services rarely make a lot of money from any single item of third-party content, so they lack financial incentives to stand behind individual items. Also, the services often lack the facts sufficient to properly defend third-party content in court.

Accordingly, the most economically rational decision for most Internet services is to capitulate to any lawsuit over UGC—or avoid the lawsuit altogether by quickly removing third-party content in response to pre-litigation demands, without any investigation or pushback. This causes “collateral censorship,” i.e., the proactive removal of legitimate content as a prophylactic way of reducing potential legal risk and the associated potential defense costs.

Unmeritorious quick removals are common in online copyright law,57 because the UGC copyright safe harbor58 is less defendant-favorable than Section 230.59 In contrast, Internet services routinely stand up to non-copyright legal threats, legal demands, and cease-and-desist letters targeting UGC—because Section 230 provides them legal certainty at a relatively low cost.

And, of course, if everyone had to rely on using the First Amendment to defend such lawsuits, it would be a lot more time consuming and a lot more expensive:

Unlike Section 230, Constitutional litigation is rarely quick or cheap. In particular, courts are reluctant to resolve Constitutional arguments on motions to dismiss. Further, Constitutional doctrines often raise sufficient factual questions that courts wait until summary judgment (or later) before disposing of an unmeritorious case. Thus, Internet services will expect it to cost less to defend UGC via Section 230 than the First Amendment, which makes the services more willing to stand up for their users. And if Section 230 and the First Amendment both equally dictate defense wins, society as a whole benefits from reaching that result as quickly and cheaply as possible.

Importantly, Goldman points out that this kind of protection probably helps marginalized communities protect their speech the most. This is partly why it's so annoying that so many people seeking to attack CDA 230 lately have been claiming to do so on behalf of marginalized communities.

The services’ Section 230-aided commitment to their UGC especially benefits content from marginalized communities. Not only are marginalized voices more likely to be targeted by people in positions of power, but Internet services are less likely to worry about the consequences of removing content from marginalized communities. Compared to the First Amendment, Section 230 helps keep online the most “at risk” legitimate content.

I've seen some critics of CDA 230 already criticizing Goldman's paper, not on substance (because, how could they), but by misrepresenting it as suggesting that CDA 230 somehow supersedes the 1st Amendment. That's not what he's saying at all. What he argues -- clearly, carefully, and with great detail -- is that the procedural benefits of CDA 230 are vast and immense and are not simply replicated by the 1st Amendment should Congress continue to chip away at CDA 230.

Filed Under: 1st amendment, cda 230, civil procedure, eric goldman, free speech, procedures, section 230, speech enhancing


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Apr 2019 @ 11:15am

    If Masnick's sponsors want continuing section 230 protection, they should be forced to stop using their algorithms to curate what people see.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 18 Apr 2019 @ 11:28am

      Re:

      I assume you mean google.

      By which means should we determine what material in 10 million search results should be at the top of the list? Or do you propose some other magical way to display search results?

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 18 Apr 2019 @ 11:38am

        Re: Re:

        Facebook/Google, though I would point my finger more at YouTube than search here.

        If your algorithms are feeding people fucked up content because it increases "engagement" (and therefore advertising opportunities), section 230 protections should no longer apply.

        reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 18 Apr 2019 @ 11:58am

            Re: Re: Re: Re:

            If they can't stop their algorithms from amplifying fucked up content for ad revenue, their business model doesn't deserve to survive. Nobody is forcing them to "suggest" videos to people. That's something they decided to do on their own because they knew it would make them more money.

            "But it's too hard / expensive" isn't an acceptable excuse.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Apr 2019 @ 12:08pm

              Re: Re: Re: Re: Re:

              "But it's too hard / expensive" isn't an acceptable excuse.

              How about without section 230 protection, nobody would be able to publish anything on the Internet without somebody else approving what they want to publish. That would shut down most peoples ability to makes comments, never mind publish original works.

              reply to this | link to this | view in chronology ]

            • icon
              Mike Masnick (profile), 18 Apr 2019 @ 1:37pm

              Re: Re: Re: Re: Re:

              If they can't stop their algorithms from amplifying fucked up content for ad revenue

              Define "fucked up content" under the law in a way that doesn't violate the 1st Amendment. I'll wait.

              their business model doesn't deserve to survive.

              Sure. So go build a better competitor that doesn't serve "fucked up content" and their business model will fail. Problem solved.

              reply to this | link to this | view in chronology ]

              • This comment has been flagged by the community. Click here to show it
                identicon
                Anonymous Coward, 18 Apr 2019 @ 1:58pm

                Re: Re: Re: Re: Re: Re:

                I didn't say anything about serving the content.

                I said amplifying, which is exactly what their algorithms are doing.

                ...but you already knew that.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 18 Apr 2019 @ 2:04pm

                  Re: Re: Re: Re: Re: Re: Re:

                  “I didn’t say anything about serving the content I said amplifying”

                  😀

                  Ok let’s start with something more simple then internet.

                  What is 2+2?

                  reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 18 Apr 2019 @ 2:07pm

                  So go build a better competitor that doesn't amplify "fucked up content" (whatever that means). Problem solved.

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 18 Apr 2019 @ 2:41pm

                  Re: Re: Re: Re: Re: Re: Re:

                  YouTube id reasonably accurate in what it offers, at least in my experience, so one has to wonder what sort of content you are looking at to see 'fucked up' content.

                  reply to this | link to this | view in chronology ]

                • icon
                  Mike Masnick (profile), 18 Apr 2019 @ 3:04pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I didn't say anything about serving the content.

                  Sure. But my statement still stands if you replace "serve" with "amplify."

                  But you knew that.

                  reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 18 Apr 2019 @ 6:53pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "I said amplifying, which is exactly what their algorithms are doing."

                  ...and happens with many millions more decent videos than the tiny amount you obsess over.

                  reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 18 Apr 2019 @ 6:52pm

              Re: Re: Re: Re: Re:

              "Nobody is forcing them to "suggest" videos to people"

              Huh, you said something true for once. Your solution is apparently to block millions of legitimate videos from finding an audience, but I at least agree that video suggestions are not the core of YouTube's business.

              reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 18 Apr 2019 @ 12:24pm

          Define “fucked up content” in clear and concise terms. Then tell us why your definition is the objectively correct one that all people should abide by.

          reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 18 Apr 2019 @ 11:55am

      Re:

      But this is considered a private site for Public distribution..

      Just as you may create your own site and monitor it as you feel.
      Or would you debate idiots and A-holes to your content?? just to have 1000 pages of content that says nothing and does little, except to fill the net with Crap and confusion?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Apr 2019 @ 1:21pm

      Re: bring it on motherfucker

      Didn’t you leave forever bro?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Apr 2019 @ 6:48pm

      Re:

      "they should be forced to stop using their algorithms to curate what people see"

      Define a search engine that does not do such a thing. Then, recall what the web was like before such things existed. The silver lining is that people like you could not infect intelligent debate as you do now, but it would be a heavy price to pay for such luxury

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 19 Apr 2019 @ 2:45am

        Re: Re:

        I recall what the web was like before. My friend Wayne Barsky recommended Google to me, previously I was using Alta-Vista. Google was good, and fast, and search results were far, wide and useful.

        Now I totally discount what Google comes back with. I googled Mueller Report, and got left wing horse shit, with almost no unbiased coverage of the truth and the facts. That’s OK, because I know google is bullshit now. Google covers Techdirt more than than any real news outlet.

        “People like me could not infect intelligent debate”? You mean this shit smearing public toilet of a site, where debates are immediately silenced by invisible “community” members? You’ve got to be kidding.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 19 Apr 2019 @ 3:47am

          Re: Re: Re:

          “I googled Mueller Report, and got left wing horse shit, with almost no unbiased coverage of the truth and the facts.”

          I’m going to take a wild guess and say you got unbiased coverage, you’re just so far down the right-wing rabbit hole that anything that doesn’t pander to you looks biased.

          Besides, I just tried that and got Fox on the first page. If they’re “left wing” I don’t know what to say.

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 19 Apr 2019 @ 8:18am

            Re: Re: Re: Re:

            I'll give him the benefit of the doubt on this one.

            So many expecting the report to be damning, and when it was revealed to have ... nothing... the Usual Suspects went and posted a zillion items on it, so the hit counter side of the algorithm pushed them to the top.

            This kind of stuff is automated. You'll see the most viewed sites at the top, and if you're not anonymous to the search engine, sites you frequent will eclipse those.

            Throwing a fit about it is just venting. There's no conspiracy involved.

            That we know about... (/s)

            reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 19 Apr 2019 @ 3:49am

          Re: Re: Re:

          “Google covers Techdirt more than than any real news outlet”

          Oh and if you can define one of those “real” sites without mentioning a source known to outright lie to their readership I’ll be interested in seeing it. I’m always happy to take in a range of sources so long as they’re not prone to fiction.

          reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 18 Apr 2019 @ 11:23am

    Why did you take 1/2 step and not the beginning?

    "I've argued that in a reasonable world we shouldn't even need a CDA 230, because the proper application of liability should obviously be with the person posting the law-breaking content, "

    You missed a step.
    I would contend that there is a 1/2 step before this one..
    PROVING that the person sending the DMCA, has the RIGHT of ownership.

    Take the time to look up data to SEE' who owns what is a REAL PAIN. there is very little paper work to show ALL of it. Movies and Music Rights and the Original songs are sold back and forth, even into Collections that are NON-PRIVATE..
    Iv seen Label boxes with so many Tags, from 3-4-6+ different companies that its ridiculous.
    Its like the old games...Made by ??, Bought by ??, distributed by?? And exclusively SOLD by ??...The original creator has no rights, but his name is on the box. and reading deeper into it, The Music artist ALSO has rights.(NOW DAYS)

    then we see the FAKE DMCA. Even with Headers and signatures that look legit, but WHO sent it.. Lets go back to LETTERS..LEGAL LETTERS...not email.
    It was the OLD idea that we would forget paper...But even NOW, its still a requirement, for ALL legal documents.. If it wasnt, SPAM would be REAL scary..

    Pleasse look at your statement, and consider a correction.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Apr 2019 @ 11:40am

      Re: Why did you take 1/2 step and not the beginning?

      You missed a step.
      I would contend that there is a 1/2 step before this one..
      PROVING that the person sending the DMCA, has the RIGHT of ownership.

      You missed the point of the article, the DMCA and section 230 are completely separate (other than 230 does not provide immunity to the hosting provider for copyrighted content)

      There is nothing about section 230 that requires a DMCA notice

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 18 Apr 2019 @ 12:20pm

        Re: Re: Why did you take 1/2 step and not the beginning?

        " Section 230 provides defendants with more substantive and procedural benefits than the First Amendment does."

        then why does a person have to defend themselves?? FROM WHAT??

        "For example, anti-SLAPP laws and defamation retraction-demand statutes create procedural hurdles to speech-related lawsuits that the First Amendment does not require. "

        What are we defending out rights from?? The procedure is to send a letter requesting we NOT say something...Isnt that part of the DMCA..

        If we are just talking about who is responsible for Freedom of speech, ONLY..
        Then why not fall back to the UN Rights. And go tell them to Stuff themselves..

        https://www.un.org/en/universal-declaration-human-rights/index.html

        Article 2.

        Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

        Article 19.

        Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

        The biggest concern, tends to be, the DEMAND that we Be just and truthful... Those that represent us, have no such demand.. If we cant prove something we are Ruched to court to PROVE something...It would be nice if we could do the other side of this... Get our representatives to PROVE facts that have been TOLD to them..

        But How man persons as individuals would take a RICH person to court over a Lie? Its the other way around, the rich would take ANYONE/ANYTHING to court if they could find a way to make more money..

        And yes, these person seem to be on the uptick, of persecution and prosecution.. Its a lawyer who has nothing to do, and is looking to a favorable court, that has little concept of Personal opinions.. Can we Sue IBM, APPLE, ??? for have 1 person who is Opinionated White supremacist?? I dont Really think so. It wouldnt get to court...the problem HERE, is the intersection of the NET, for persons to Broadcast ANYTHING they have a say into..and Who is rich enough to take money from Along the line of ownership of Site and Server..

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Apr 2019 @ 12:32pm

          Re: Re: Re: Why did you take 1/2 step and not the beginning?

          What are we defending out rights from??

          Being hauled into court time and time again until you go broke winning cases.

          reply to this | link to this | view in chronology ]

          • icon
            ECA (profile), 18 Apr 2019 @ 12:47pm

            Re: Re: Re: Re: Why did you take 1/2 step and not the beginning?

            So, how does a person send a notice that he wishes it taken down??
            Which is the proper way to do this..
            and if he/they(lawyer) does not follow procedure..its a fail.

            How do you prove it isnt a Fake take down??
            Look up a lawyers name and send a note to them asking if this is the lawyers??

            Even HERE...
            https://www.techdirt.com/articles/20190411/13324541983/that-was-quick-thomas-goolnik-already -gets-google-to-forget-our-latest-story-about-thomas-goolnik-getting-google-to-forget.shtml

            I would wonder if this take down is a lawyer, the person or an agency that has no rights to do this.

            How do you prove a negative/positive, or Even search up any proof on the internet..TIME. and Most of the internet RULES(I dont think there are to many Laws for the internet(without recourse, CLICK, off) demands it be Instantly removed.. Which is F'ing stupid at best. Because even in Real, you are given a chance to recant or Prove your facts.. Or show enough data about Everyone else saying it to Show it wasnt YOU..

            and I would suggest, and this is stupid, Not to pay for a lawyer, but demand the court either pay for it or the person Taking you to court...because You aint go the money and WONT pay for a defense that has nothing to do with your being a 3rd-4th party to a Subject you had no concerns over..(including GOOGLE)

            If nothing, I would send the UN rights lists(there are about 4-5) TO GOOGLE..or at least DEMAND proof, it is from that person or his lawyer, asking to be removed...which would mean This site is no longer Viewable in the EU...(fine by me)

            reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 18 Apr 2019 @ 11:47am

      Re: Why did you take 1/2 step and not the beginning?

      Right of ownership would be in the court filing. 230 basically expedites a court ruling - while you read about SC 1st rulings, you rarely see anything about the 30,000,000 cases a day SCOTUS never hears about because of Standing things like ownership.

      And Ownership would only apply in a Copyright case, which is only a fraction of the tip of the iceberg that 230 covers.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 18 Apr 2019 @ 11:59am

      Re: Why did you take 1/2 step and not the beginning?

      DMCA does not relate to SEC 230, as the DMCA only applies to copyright, and SEC 230 does not apply to copyright.

      Your poorly formatted rant seems to have some solid logic as it relates to copyright, but is completely inapplicable to the SEC 230 discussion. No correction is necessary.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Apr 2019 @ 1:09pm

    Is "unmeritorious" a specific legal word? Is there a reason to use it in lieu of "unmerited?"

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Apr 2019 @ 9:49pm

    Eric Goldman huh? ok sure dude

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Apr 2019 @ 10:35pm

    After Hamilton awoke from his dream, he tried to ponder the meaning. Why was Hillary BURNED like a witch? What did it all mean, and how did it relate to the deleted Emails? All he wanted to do was publish the truth, but he seemed to experience attacks from all sides, even his unconscious, while he was sleeping.

    Hamilton recalled the days before Section 230 was repealed, when the Internet was rife with false accusations that could never be prosecuted and liars that could never be held accountable. Were people better off then, listening to Russian conspiracy theories and letting sites silence anyone they disagreed with? Probably not, people were more careful now that Bill BarR was POTUS and Trump retired with Tiger Woods to host Teen Beauty contests.

    Yeah, Hamilton thought, those days of one sided bullshit being propagated by total fucking liars and charlatans are long gone, and good riddance to them. Everyone is more accountable now, and most people are working and making more money than ever before, and having babies, since Abortion is new Rare and Sad. And those few who would subvert the greatest country that ever graced the face of the planet can sit in prison right alongside Chelsea and Julian and Mike, forgotten, alone and sexless. Except with each other, of course.

    reply to this | link to this | view in chronology ]

    • icon
      blademan9999 (profile), 19 Apr 2019 @ 9:44am

      Re:

      Sectoin 230 does nothing to stop you going after the people who actually post the content.

      Before section 230 supreme court cases ahd ruled that.
      https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
      Companies who did not moderate their content would not be liable for defamatroy content, but https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co.
      Companies who engaged in moderation would be.
      Removing defamatory content is something that where manually reading EVERY single comment is going to insufficient, as how exactly how is someone who is reading a comment made by someone they don't know about another person or entity they don't know, supposed to determined whether something is defamatory.

      So therefore without Section 230, any site that wanted to host user generated content while also wanting to avoid exposing themselves to immense liability would be to simply engage in NO MODERATION WHAT SO EVER. So getting rid of Section 230 will do absolutely nothing to protect against defamation.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Apr 2019 @ 10:14pm

      Re:

      Remember your promise to have Hilary locked up two years ago?

      Last I checked, Manafort is not Hilary.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 20 Apr 2019 @ 2:55am

        Re: Re:

        Have you heard from Hillary lately? Why hasn’t she commented on the Mueller report? You know why? Look at her hose, and look at his nose. Really - look carefully.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Apr 2019 @ 3:39am

          Re: Re: Re:

          "Why hasn’t she commented on the Mueller report?"

          Is there a need for her to comment? Her opinion has no relevance to anything.

          It's strange how you people are so obsessed with someone your orange leader defeated years ago, rather than things he and his staff are doing right now...

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Apr 2019 @ 7:41am

          Re: Re: Re:

          I saw her hose. It's not in jail.

          You fucking liar, Hamilton.

          reply to this | link to this | view in chronology ]


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